APPENDIX 15
Memorandum submitted by Paul Goggins MP,
Parliamentary Under Secretary of State, Home Office
During the Home Affairs Select Committee session
on 29 April, at which my predecessor Mr Benn gave oral evidence
on the Sexual Offences Bill, you asked what led the Government
to revert to the situation where defendants in rape cases can
be named. Mr Benn undertook to write to you setting out the circumstances
that led to this reversal.
Anonymity for both complainants and defendants
in rape cases was introduced by sections 4, 5 and 6 of the Sexual
Offences (Amendment) Act 1976. Anonymity for complainants had
been recommended by the Heilbron Committee in their 1975 "Report
of the Advisory Group on the Law of Rape". The Heilbron Committee
had emphasised the special character of the offence. Even in the
case of a wholly innocent victim whose assailant was convicted,
public knowledge of the indignity she had suffered in being raped
might be extremely distressing and even positively harmful, and
the risk of such public knowledge could operate as a severe deterrent
to bringing proceedings. Furthermore since in a criminal trial
guilt had to be proved to the satifaction of the jury, an innocent
victim could never be sure that a conviction would follow their
complaint. If the accused was acquitted the distress and harm
caused to the victim could be further aggravated, and the danger
of publicity following an acquittal could be a risk the victim
was not prepared to take. Also, since there was no way of distinguishing
in advance between genuine victims and others, the protection—subject
to certain exceptions—needed to be a general one.
The Heilbron Committee were therefore satisfied
that if a procedure for keeping the name of the complainant out
of the newspapers could be devised, then more rape cases might
be reported to the police, as victims would be more willing to
come forward if they knew that there was hardly any risk that
the judge would allow their name to be disclosed.
The Committee did not consider that defendants
in rape cases should have anonymity. In particular, the important
justification for anonymity as an incentive to victims to report
crimes of rape so as to ensure that rapists did not escape prosecution
did not apply to defendants. In the first place, defendants were
generally named, even in the case of murder and other reprehensible
crimes. Even in blackmail cases where the complainant was invariably
anonymous it was always the practice for the defenants' name to
be disclosed, and they did not think it desirable to recommend
changes in the law of rape which would make it more anomalous,
without strong justification. The only reason for giving him anonymity
was the argument that he should be treated on an equal basis.
The Bill as introduced adopted the Heilborn
Committee' proposals, but during its passage through Parliament
provision for the anonymity of defendants was incorporated by
way of a concessionary amendment.
In 1984, the Criminal Law Revision Commttee
looked at the subject in broad outline as part of their report
on the law relating to and penalties for sexual offences. They
endorsed the reasoning of the Heilborn Committee that led to complainants
in rape cases being granted anonymity to encourage them to come
forward.
They also agreed with the arguments of the Heilbron
Committee against giving anonymity to defendants in rape cases.
They felt that the "tit-for-tat" argument—that
the man should be granted anonymity because the woman has it—was
not valid, despite its "superficial attractiveness"
(since rape was but one of many offences where a defendant who
was acquitted might nevertheless suffer damage to their reputation.
There was no reason why rape should be distinguished from other
offences in this respect.) They thought that it was erroneous
to suppose that the equality should be with the victim—it
should be with other accused persons, and an acquittal would give
the defendant public vindication.
Reporting restrictions on defendants in sexual
cases were repealed by Parliament following the Criminal Law Revision
Committee (CLRC)'s recommendation. The restrictions had caused
practical difficulties, for example, if a man escaped custody
before convicition, the police could not warn the public he was
a suspected rapist unless the judge exercised his power to lift
the restrictions. It had also led to a number of anomalies, for
example, a man who was acquitted of rape but convicted of indecent
assault still benefited from reporting restrictions and could
not be named. The CLRC took the view that those accused of sexual
offences should not be be singled out for special protection while
other defendants could be identified. The then Government agreed.
It was not persuaded that these defendants should be treated differently,
and introduced legislation in the Criminal Justice Act 1988 which
repealed the measure.
I hope that my explanation has clarified the
problems which arose with anonymity for defendants in rape cases
and which led to reversal of the law to remove anonymity in such
cases.
June 2003
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